SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND
CONDITIONS
ASAP CASTING (hereinafter, “We,” “Us,” “Our”) is offering a mobile
messaging program (the “Program”), which you agree to use and participate
in subject to these Mobile Messaging Terms and Conditions (hereinafter
“Terms”) and Privacy Policy (the Terms and Privacy Policy are referred to
collectively as the “Agreement”). By opting in to or participating in any of
our Programs, you accept and agree to these terms and conditions,
including, without limitation, your agreement to resolve any disputes with us
through binding, individual-only arbitration, as detailed in the “Dispute
Resolution” section below. This Agreement is limited to the Program and is
not intended to modify other Terms and Conditions or Privacy Policy(ies) that
may govern the relationship between you and ASAP CASTING in other
contexts.
User Opt-In: The Program allows Users to receive SMS/MMS mobile
messages by affirmatively opting into the Program, such as through online
or application-based enrollment forms. Regardless of the opt-in method you
utilized to join the Program, you agree that this Agreement applies to your
participation in the Program. By participating in the Program, you agree to
receive recurring automated promotional and personalized marketing text
messages (e.g., SMS and MMS) from ASAP CASTING, including text
messages that may be sent using an automatic telephone dialing system, to
the phone number associated with your opt-in. Consent to receive
automated marketing text messages is not a condition of any purchase.
While you consent to receive messages sent using an auto dialer, the
foregoing shall not be interpreted to suggest or imply that any or all of Our
mobile messages are sent using an automatic telephone dialing system
(“ATDS” or “auto dialer”). Message and data rates may apply.
Message frequency will vary. ASAP CASTING reserves the right to alter the
frequency of messages sent at any time, so as to increase or decrease the
total number of sent messages. ASAP CASTING also reserves the right to
change the short code or phone number from which messages are sent and
we will notify you when we do so. Not all mobile devices or handsets may be
supported and our messages may not be deliverable in all areas. ASAP
CASTING, its service providers and the mobile carriers supported by the
program are not liable for delayed or undelivered messages.
User Opt Out: If you do not wish to continue participating in the Program or
no longer agree to this Agreement, you agree to reply STOP to any mobile
message from ASAP CASTING in order to opt out of the Program. After
texting STOP, you will receive one additional message confirming that your
request has been processed. You acknowledge that our text message
platform may not recognize and respond to unsubscribe requests that do not
include the STOP keyword command and agree that ASAP CASTING and its
service providers will have no liability for failing to honor such requests. If
you unsubscribe from one of our text message programs, you may continue
to receive text messages from ASAP CASTING through any other programs
you have joined until you separately unsubscribe from those programs.
Duty to Notify and Indemnify: If at any time you intend to stop using the
mobile telephone number that has been used to subscribe to the Program,
including canceling your service plan or selling or transferring the phone
number to another party, you agree that you will complete the User Opt-out
process set forth above prior to ending your use of the mobile telephone
number. You understand and agree that your agreement to do so is a
material part of these terms and conditions. You further agree that, if you
discontinue the use of your mobile telephone number without notifying Us of
such change, you agree that you will be responsible for all costs (including
attorneys’ fees) and liabilities incurred by Us, or any party that assists in the
delivery of the mobile messages, as a result of claims brought by
individual(s) who are later assigned that mobile telephone number. This duty
and agreement shall survive any cancellation or termination of your
agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD ASAP
CASTING HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM
YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU
HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE
TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR
SIMILAR STATE AND FEDERAL LAWS , AND ANY REGULATIONS
PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO
CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that
opt into the Program can expect to receive messages concerning the
marketing and sale of our services.
Cost and Frequency: Message and data rates may apply. The Program
involves recurring mobile messages, and additional mobile messages may be
sent periodically based on your interaction with Us. You agree that you are
solely responsible for all message and data charges that apply to mobile
messages. All such charges are billed by and payable to your mobile service
provider.
Opt-outs must be submitted in accordance with the procedures set forth
above.
MMS Disclosure: The Program will send SMS Fallback Messages if your
mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and
may not be available in all areas at all times and may not continue to work
in the event of product, software, coverage or other changes made by your
wireless carrier. We will not be liable for any delays or failures in the receipt
of any mobile messages connected with this Program. Delivery of mobile
messages is subject to effective transmission from your wireless service
provider/network operator and is outside of Our control. T-Mobile is not
liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own,
capable of two-way messaging, be using a participating wireless carrier, and
be a wireless service subscriber with text messaging service. Not all cellular
phone providers carry the necessary service to participate. Check your
phone capabilities for specific text messaging instructions.
Age Restriction: You may not use or engage with the Platform if you are
under thirteen (13) years of age. If you use or engage with the Platform and
are between the ages of thirteen (13) and eighteen (18) years of age, you
must have your parent’s or legal guardian’s permission to do so. By using or
engaging with the Platform, you acknowledge and agree that you are not
under the age of thirteen (13) years, are between the ages of thirteen (13)
and eighteen (18) and have your parent’s or legal guardian’s permission to
use or engage with the Platform, or are of adult age in your jurisdiction. By
using or engaging with the Platform, you also acknowledge and agree that
you are permitted by your jurisdiction’s Applicable Law to use and/or engage
with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited
content over the Platform. Prohibited content includes:
• Any fraudulent, libelous, defamatory, scandalous, threatening,
harassing, or stalking activity;
• Objectionable content, including profanity, obscenity, lasciviousness,
violence, bigotry, hatred, and discrimination on the basis of race, sex,
religion, nationality, disability, sexual orientation, or age;
• Pirated computer programs, viruses, worms, Trojan horses, or other
harmful code;
• Any product, service, or promotion that is unlawful where such
product, service, or promotion thereof is received;
• Any content that implicates and/or references personal health
information that is protected by the Health Insurance Portability and
Accountability Act (“HIPAA”) or the Health Information Technology for
Economic and Clinical Health Act (“HITEC” Act);
• Any other content that is prohibited by Applicable Law in the
jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or
controversy between you and ASAP CASTING, or between you and Vonage
or any other third-party service provider acting on our behalf to transmit the
mobile messages within the scope of the Program, arising out of or relating
to federal or state statutory claims, common law claims, this Agreement, or
the breach, termination, enforcement, interpretation or validity thereof,
including the determination of the scope or applicability of this Agreement to
arbitrate, such dispute, claim, or controversy will be, to the fullest extent
permitted by law, determined by arbitration in Chicago, IL before one
arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association (“AAA”) then in effect. Except as otherwise provided herein, the
arbitrator shall apply the substantive laws of the Federal Judicial Circuit in
which ASAP CASTING’s principle place of business is located, without regard
to its conflict of laws. Within ten (10) calendar days after the arbitration
demand is served upon a party, the parties must jointly select an arbitrator
with at least five years’ experience in that capacity and who has knowledge
of and experience with the subject matter of the dispute. If the parties do
not agree on an arbitrator within ten (10) calendar days, a party may
petition the AAA to appoint an arbitrator, who must satisfy the same
experience requirement. In the event of a dispute, the arbitrator shall decide
the enforceability and interpretation of this arbitration agreement in
accordance with the Federal Arbitration Act (“FAA”). The parties also agree
that the AAA’s rules governing Emergency Measures of Protection shall apply
in lieu of seeking emergency injunctive relief from a court. The decision of
the arbitrator shall be final and binding, and no party shall have rights of
appeal except for those provided in section 10 of the FAA. Each party shall
bear its share of the fees paid for the arbitrator and the administration of the
arbitration; however, the arbitrator shall have the power to order one party
to pay all or any portion of such fees as part of a well-reasoned decision. The
parties agree that the arbitrator shall have the authority to award attorneys’
fees only to the extent expressly authorized by statute or contract. The
arbitrator shall have no authority to award punitive damages and each party
hereby waives any right to seek or recover punitive damages with respect to
any dispute resolved by arbitration. The parties agree to arbitrate solely on
an individual basis, and this agreement does not permit class arbitration or
any claims brought as a plaintiff or class member in any class or
representative arbitration proceeding. Except as may be required by law,
neither a party nor the arbitrator may disclose the existence, content, or
results of any arbitration without the prior written consent of both parties,
unless to protect or pursue a legal right. If any term or provision of this
Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity,
illegality, or unenforceability shall not affect any other term or provision of
this Section or invalidate or render unenforceable such term or provision in
any other jurisdiction. If for any reason a dispute proceeds in court rather
than in arbitration, the parties hereby waive any right to a jury trial. This
arbitration provision shall survive any cancellation or termination of your
Agreement to participate in any of our Programs.
You understand and agree that, by agreeing to these Terms, you and ASAP
CASTING are each waiving the right to a trial by jury or to participate in a
class action and that these Terms shall be subject to and governed by the
Federal Arbitration Act.
Miscellaneous: You warrant and represent to Us that you have all necessary
rights, power, and authority to agree to these Terms and perform your
obligations hereunder, and nothing contained in this Agreement or in the
performance of such obligations will place you in breach of any other
contract or obligation. The failure of either party to exercise in any respect
any right provided for herein will not be deemed a waiver of any further
rights hereunder. If any provision of this Agreement is found to be
unenforceable or invalid, that provision will be limited or eliminated to the
minimum extent necessary so that this Agreement will otherwise remain in
full force and effect and enforceable. Any new features, changes, updates or
improvements of the Program shall be subject to this Agreement unless
explicitly stated otherwise in writing. We reserve the right to change this
Agreement from time to time. Any updates to this Agreement shall be
communicated to you. You acknowledge your responsibility to review this
Agreement from time to time and to be aware of any such changes. By
continuing to participate in the Program after any such changes, you accept
this Agreement, as modified.